Introduction

The Individuals with Disabilities Education Act (“IDEA”) is meant to ensure that schools provide disabled students with the services they need to progress educationally. IDEA is rightfully hailed for providing comprehensive educational rights to millions of children previously neglected by the public education system. But from the perspective of situationism, IDEA is a disaster, particularly in addressing the needs of low-income, minority children from limited English proficiency (“LEP”) homes.

Situationism seeks to base law and policymaking on realist models of human action. To achieve this end, it draws on cognitive psychology, social psychology, behavioral neuroscience, evolutionary biology, and related fields. Situationism stands in opposition to non-realist models of human action, particularly dispositionist models, such as the rational actor so beloved by law and economics. The key situationist insight is that while it may appear that our dispositions (personality, attitude, preferences, character, free choices) determine our actions, in truth, our actions are ruled largely by our situations (environmental factors and sub-conscious mental & physical processes).

The Situation of IDEA

Education advocates know well the typical trajectory for LEP kids under IDEA. These children are generally identified as eligible for special education services later than children from English-proficient homes, for schools do not rigorously distinguish academic deficiencies due to disabilities from deficiencies due to limited English proficiency. Once LEP children are identified, their parents consent to limited assessments, simplistic goals, and inexpensive services because of their trust in school personnel. Only after years pass, as the children fall further and further behind their peers, do their parents seek out an advocate for help.

The situation established by IDEA virtually guarantees this outcome for the following reasons:

• IDEA requires schools to provide children the services they need in order to achieve “educational benefit” – generally speaking, progress towards individualized educational program (“IEP”) goals – without adequately reimbursing the schools for those services. Administrators and staff at cash-strapped schools may be dispositionally inclined to help disabled children, but absent funding, they have little situational incentive to properly assess children’s needs, to set challenging goals, or to seek out and provide the services they would need to meet such goals.

• IDEA posits a uniform “parent” able to take advantage of a broad array of rights under the law. In reality, LEP parents are subject to a wide variety of situational forces that diminish their ability to take advantage of these rights:

• Those who are illegal immigrants are, as a situational matter, terrified of invoking legal rights and procedures for fear of drawing attention to themselves and thereby increasing their risk of deportation.

• LEP parents are unable to meaningfully participate in IEP meetings in which school staff provide spoken translation. Staffers will generally translate the group’s conclusions, but not the side discussion that often occurs between team members. Moreover, while parents have the legal right to written translations of IEPs and assessment results, schools are under no legal obligation to inform parents of this right.

• In single-parent homes or in homes with two working parents, it is difficult to make time to learn about children’s rights, or to network with other parents or with disability rights organizations.

• Parents with limited education often trust those with more education and who present themselves as authority figures. Tragically, as system justification theory shows, members of disadvantaged groups regularly internalize perceptions of themselves as social inferiors, are reluctant to challenge the social order, and patiently accept inadequate outcomes. All of these tendencies lead to years of inadequate special education.

• School personnel who participate in IEP teams fall victim to groupthink: they seek consensus rather than airing objections and doubts, they fail to consider outside information and opinions that might contradict the group consensus, and they come to consider loyalty to the group and its consensus as the moral course of action. As Irving Janis, the psychologist who pioneered the study of groupthink, wrote, “Each member is likely to become more dependent than ever on the in-group for maintaining his self-image as a decent human being and will therefore be more strongly motivated to maintain group unity.” For a staffer to admit that a child is not progressing or to consult outside experts for assessments or services is to act immorally and betray the group, all at cost to his or her self-image.

• IDEA is a highly procedural law, exacting in its specification of what must be done to develop an IEP, who must participate, and the timeframes in which each step must be taken. An IEP developed according to these procedures gains procedural legitimacy: because the IEP is the outcome of these rigorous procedures, schools (not to mention administrative hearing officers and judges) presume it to be fair, even in the face of evidence that the child is not progressing. Moreover, much research shows that people view the fairness of procedures as trumping the fairness of outcomes.

• While IDEA gives parents rights to an independent educational evaluation and to a due process hearing, schools often view parents who asserts these rights as dispositionally selfish (i.e., as rational actors freely choosing to privilege their children’s needs over those of the school) rather than as situationally motivated (i.e., as human animals subject to a genetic compulsion to protect their offspring). The IEP team may also view these rights as procedurally illegitimate: invoking them brings in outside opinions and thereby calls into question the morality of group consensus, and also privileges outcomes over procedures. Just as schools view parents who assert their rights as selfish, parents come to view school staff as incompetent, uncaring, or even malicious (rather than as humans seeking procedural legitimacy and subject to economic constraints and groupthink). In taking these stances, both sides make what social psychologists describe as the fundamental attribution error: the human tendency to attribute others’ behavior to their dispositions rather their situations.

What is to be Done?

An obvious solution to this problem would be for federal and state governments (i) to prescribe rigorous assessment for disabilities of all children entering the school system, (ii) to specify exactly what services each disability merits, and (iii) to fully reimburse school districts for the costs of these assessments and services. Such a system would remove nearly all of the situational barriers to children receiving effective services in early childhood, when they are most effective.

Until that day comes, advocates for LEP children are advised to adopt a situationist perspective:

• Attempt to level the linguistic playing field. First, have someone from your office translate for the parent at IEP meetings. Even if you are bilingual, it is ideal to bring someone else so that you can be free to negotiate on behalf of the parent, and save precious time. Request that all written documents produced by the IEP team be translated into the parent’s native language.

• Encourage parents to assert their rights under IDEA (i.e., fight parents’ tendency towards system justification) and discourage them from expressing unwarranted anger or hostility towards school personnel (i.e., remind parents not to make the fundamental attribution error). It will take years for even the perfect IEP to be implemented if the school hates the family and is determined to stonewall on delivery of services.

• In your dealings with the school (and if need be, with administrative hearing officers and the courts), stress the procedural legitimacy of seeking an independent educational evaluation and a due process hearing.

• Resign yourself to groupthink, but use independent educational evaluations and due process as means to route around it. An IEP team will likely never admit that it has spent years signing off on inadequate IEPs; do what is necessary to stop the hearing officer from identifying with the IEP team so that she or she will look at the child’s circumstances with fresh eyes.

This article was authored by Jith Meganathan, Staff Attorney, Central California Legal Services.

As you watch The University of Kansas take on The University of Memphis tonight at 6:21p.m. (US/Western) on CBS for the 2008 NCAA Men’s Basketball National Championship keep in mind that the respective universities, and many others, are failing their student-athletes.

The University of North Carolina is the only school among the final four teams to graduate at least half of its players. The other top seeds graduation rates are an embarrassment: 45 percent at Kansas and 40 percent at UCLA and Memphis.

Race matters in this issue, reflected in the gaps between graduation rates for white and African-American student-athletes. 34 percent of the tournament teams have a 30-point or greater difference in graduation success between black and white players. Schools of higher education promise their student-athletes a meaningful education but have failed to meet those promises.

The NAACP Legal Defense Fund (LDF) and the Civil Rights Project/Proyecto Derechos Civiles (CRP) announce the release of Still Looking to the Future: Voluntary K-12 School Integration; A Manual for Parents, Educators and Advocates. The Manual provides valuable guidance and information about how communities and school districts can promote racial diversity and address racial isolation in schools nationwide. This Second Edition of the Manual is being issued on the heels of the Supreme Court’s June 2007 decision in Parents Involved in Community Schools v. Seattle School District No. 1, which limited the ability of school districts to take race into account in achieving these goals.

This is a critical time on the ground. School districts and communities around the country are struggling to determine how to continue their voluntary integration efforts within the bounds of the Court’s decision. In some instances, school districts have hastily modified or abandoned diversity programs without carefully considering the options that are still viable under the Court’s decision and taking proper account of the significant harms of racially segregated schools.

The Manual addresses the practical questions of what parents, advocates and educators can now do to promote diversity and address the harms of racial isolation in their schools. It provides accurate and up to date information and a step by step guide for how you can strengthen diversity and expand opportunity in your schools, including:

• The history of court-ordered desegregation efforts;
• The causes, patterns and devastating impact of the rapid resegregation currently occurring in America’s public schools;
• A comprehensive discussion of many demonstrated benefits of racially integrated schools and the harms of racially isolated schools;
• A detailed review of the Supreme Court’s Parents Involved decision;
• Brief description of the common methods of student assignment;
• Case studies of school districts with widely discussed approaches towards promoting high quality, inclusive schools

The Equal Justice Society and UCLA School of Law hosted a Symposium on the labor and employment impact of California’s anti-affirmative action law — Prop. 209. Several research papers were presented, including:

A Vision Fulfilled? The Impact of Proposition 209 on Equal Opportunity for Women Business Enterprises
Monique W. Morris, Michael D. Sumner, Jessica Z. Borja

Affirmative Action Programs and Business Ownership among Minorities and Women
Robert Fairlie, Justin Marion

Diversity Management in America and the Affirmative Action Debate in France
Christine Pauwels

The Effectiveness of Affirmative Action in Highway Procurement
Justin Marion

Free to Compete? Measuring the Impact of Proposition 209 on Minority Business Enterprises
Monique W. Morris, Sirithon Thanasombat, Michael D. Sumner, Sara Pierre, Jessica Z. Borja

The Impact of State Affirmative Procurement Policies on Minority- and Women- Owned Businesses in Five States
Tim Lohrentz

Minority Preferences In Public Contracts
Christopher M. Westhoff, Jess J. Gonzalez

Using Race or Ethnicity as Factors in Employee and Contractor Outreach
David Benjamin Oppenheimer

* * *
In related news, UCLA Professors Cheryl Harris and Walter Allen wrote an Op-Ed in the National Law Journal highlighting the flaws in the “mismatch thesis”, which purports to demonstrate empirically that “affirmative action in law schools hurts black law students because it puts them in schools where their credentials are below the median; consequently, they cannot academically compete.” Professors Harris and Allen note that the “mismatch thesis” has not been subject to peer review and numerous questions remain about the accuracy of the thesis.
The Equal Justice Society published a point-by-point response to Pr. Sander’s 2004 article, which appeared in the Stanford Law Review. Other responses can be found at http://www.equaljusticesociety.org/research.html.

On Sunday, the Associated Press reported on the current declining trend in African-American lawyers appearing before the Supreme Court. The article suggests several factors that may account for the growing paucity of minority lawyers at the nation’s highest court:

• continuing problems in recruiting and retaining blacks and other minorities at the top law firms;
• the rise of a small group of lawyers who focus on Supreme Court cases;
• the decline in civil rights cases that make it to the high court; and
• the court’s dwindling caseload.

No doubt, the loss of effective affirmative action policies at many law schools will exacerbate this trend.

Titled “Racist Incident Roils Pa. High School” the Associated Press article describes a part of the school parking lot where students wearing Confederate flags exclusively park their trucks at Warkwick High School, a mostly white, affluent school. Parents of students of color stated they made complaints about the hostile environment this created, but the school defended the actions as protected by the First Amendment. Not until racial slurs targeting the students of color came to the attention of staff did the school respond, and the response seems more motivated by rumors of threats of violence than acknowledgment that the school allowed a racist environment to exist. The Superintendent’s lack of response until this week was explained as such: “Perhaps we were lulled into a false sense that our school district was immune to racism and bigotry.” Unfortunately this is an example of the racial realist/colorblind paradigm that exists across the country, a false belief that the civil rights movement changed the minds of people to believe that the movement achieved equality amongst all people. The district’s response at the parent meeting was to blame the students for not coming forward as an excuse for the school’s failure to address the hostile school environment. See Jon Hanson, Kathleen Hanson, The Blame Frame: Justifying (Racial) Injustice In America, 41 Harv. C.R.-C.L. L. Rev. 413 (2006). Clearly, this story and many others from schools across our nation indicate that to this day, youth do not think whites and people of color are equal. Incidents like this and more violent displays of racism by young people should demonstrate to school administrators that by turning a blind eye, they have a hand in perpetuating racial hostility.

State Superintendent of the California Department of Education Jack O’Connell released the 2007 STAR results for California’s students on August 15, 2007. While there were some gains in the percentage of students scoring at advanced or proficient levels of English Language Arts and Math, what was apparent from the results was an achievement gap between White students and African American and Latino classmates regardless of whether they were from a low income household or not. Noteworthy in O’Connell’s news release is his recognition that the achievement may have to do more with race than poverty: “They are racial achievement gaps, and we cannot continue to excuse them.”

According to a July 15, 2007 New York Times article “School Diversity Based on Income Segregates Some,” the answer is unclear. After the recent U.S. Supreme Court decision the restricted race-based school assignments, Parents Involved in Community Schools v. Seattle School District No. I, 127 S.Ct. 2738 (2007), schools will need to look for other legal means to seek racial diversity. By using an income based plan, studies show that schools can achieve socioeconomic diversity, but not necessarily racial diversity. The plan could succeed in income and racial diversity if it aggressively shifts students around the district. However, this runs against many families’ choice not to have their child attend an out of neighborhood school. Therefore, like San Francisco schools, if a school plan does not mandate income desegregation and provide adequate transportation options, family choice will assert itself and resegregate the schools by race. From the REP perspective, we need to locate studies that connect racial and socioeconomic diversity in schools to academic success and opportunity in order to continue to pressure schools to seek equal access to a quality education for all students.

I was unclear about the severity of the segregation patterns that Seattle School District No. 1 (”District”) was trying to remedy after reading the Court’s recent opinion in Parents Involved In Community Schools v. Seattle School District No. 1. Given the Court’s summary factual account of the problem that gave rise to the District’s program, I wondered how severe the segregation patterns in the District were.

I decided to map the patterns of segregation existent in the District at the commencement of the suit. Take a look at the map for yourself (Click on the map image to view the map).

Note that the District’s program simply gave preference to students of color who requested to attend one of District’s “high demand schools.” Was the problem of segregation perhaps more severe than the Court’s statement of facts suggests? Could such marked patterns of segregation really be unconnected to our history of racial segregation? The REP would love to hear your thoughts.

• Filed under: Data, Mapping, Education, Civil Rights
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